AMENDMENT #13 TO RECEIVABLES SALE AGREEMENT
Exhibit 10.19
AMENDMENT #13 TO RECEIVABLES SALE AGREEMENT
THIS AMENDMENT #13 (this “Amendment”), is dated as of June 23, 2009, is by and among Actuant Corporation, a Wisconsin corporation (“Parent”), GB Tools and Supplies, Inc., a Wisconsin corporation, Versa Technologies, Inc., a Delaware corporation, Kwikee Products Company, LLC, a Delaware limited liability company, ▇▇▇▇▇▇▇ Hardware Corp., a Connecticut corporation, ▇.▇. ▇▇▇▇▇▇▇ Manufacturing Co., LLC, a New York limited liability company, Atlantic Guest, Inc., a Delaware corporation, Hydratight Operations, Inc. (formerly Hydratight ▇▇▇▇▇▇▇, Inc.), a Delaware corporation, Hydratight, Inc. (formerly Hydratight ▇▇▇▇▇▇▇ Products Corporation), a Delaware corporation, ▇.▇. ▇▇▇▇▇ Corp., a Minnesota corporation, Precision Sure-Lock, Inc., a Delaware corporation, Key Components, Inc. (successor by merger to Key Components, LLC), a New York corporation, Maxima Technologies & Systems, LLC, a Delaware limited liability company, ACME Electric Inc. (successor by merger to Actown Electrocoil, Inc.), a Delaware corporation, ▇▇▇▇▇▇▇▇▇, Kenly & Co., Inc., an Illinois corporation (each of the foregoing, an “Originator” and collectively, the “Originators”), Actuant Receivables Corporation, a Nevada corporation (“Buyer”), and Wachovia Bank, National Association, as Agent (the “Agent”), and pertains to the Receivables Sale Agreement dated as of May 30, 2001 by and among Parent, the Originators and Buyer (as amended, the “Existing Agreement”). Unless defined elsewhere herein, capitalized terms used in this Amendment shall have the meanings assigned to such terms in the Existing Agreement.
PRELIMINARY STATEMENT
The parties wish to amend certain terms of the Existing Agreement on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments.
(a) Acme Electric Corporation, a New York corporation (“Acme NY”), and BH Electronics, Inc., a Tennessee corporation (“BH”), are hereby deleted as Originators under the Existing Agreement and released from their obligations thereunder; provided, however, that all other obligations of each Originator (other than Acme NY and BH) and Buyer under or relating to the Existing Agreement or any other Transaction Documents shall survive and shall not be discharged, terminated, released or satisfied hereby.
(b) Exhibit II to the Existing Agreement is hereby amended and restated in its entirety to read as set forth in Exhibit II to this Amendment.
(c) Exhibit III to the Existing Agreement is hereby amended and restated in its entirety to read as set forth in Exhibit III to this Amendment.
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Section 2. Representations. Each of the Originators hereby confirms that, as of the date of this Amendment, no event has occurred and is continuing that will constitute a Termination Event or an Unmatured Termination Event.
Section 3. Conditions Precedent. This Amendment shall become effective as of the date first above written upon receipt by the Agent of counterparts of (i) this Amendment duly executed by each of the parties, (ii) a Reconveyance of Specific Receivables for each of Acme NY and BH, in each case duly executed by each of the parties thereto and in form and substance acceptable to Agent.
Section 4. Miscellaneous.
4.1. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
4.2. CONSENT TO JURISDICTION. EACH ORIGINATOR AND BUYER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY OR ANY DOCUMENT EXECUTED BY SUCH ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY AND EACH ORIGINATOR AND BUYER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY OR ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
4.3. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY, ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
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4.4. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.
4.5. Reference To And Effect on Existing Agreement. Except as specifically modified above, the Existing Agreement and the other Transaction Documents shall remain in full force and effect and are herby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent under the Existing Agreement or any other Transaction Documents, nor constitute a waiver of any provision of the Existing Agreement or any other Transaction Documents, except as specifically set forth herein.
<signature pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
| ACTUANT CORPORATION | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| GB TOOLS AND SUPPLIES, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| VERSA TECHNOLOGIES, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
| ▇▇▇▇▇▇▇ HARDWARE CORP. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| KWIKEE PRODUCTS COMPANY, LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| ▇.▇. ▇▇▇▇▇▇▇ MANUFACTURING CO., LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
| ATLANTIC GUEST, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| HYDRATIGHT OPERATIONS, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| HYDRATIGHT, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
| ▇.▇. ▇▇▇▇▇ CORP. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| PRECISION SURE-LOCK, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| KEY COMPONENTS, INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
| MAXIMA TECHNOLOGIES & SYSTEMS, LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| ACME ELECTRIC INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| ▇▇▇▇▇▇▇▇▇, KENLY & CO., INC. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Treasurer | |||||
| Address: | ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
| ACTUANT RECEIVABLES CORPORATION | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | President | |||||
| Address: | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Attn: | ▇▇▇ ▇▇▇▇ | |||||
| Phone: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| Fax: | (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, AS AGENT | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | Vice President | |||||
[Signature Page to Amendment No. 13 to Receivables Sale Agreement]
Exhibit II
Locations of Records;
Federal Employer Identification Numbers; Other Names
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Exhibit III
Revised Cash Collection Structure
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